ABCMR Record of Proceedings (cont) AR20050006512
RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 16 MAY 2006
DOCKET NUMBER: AR20050006512
I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.
Mr. Carl W. S. Chun / DirectorMr. Jessie B. Strickland / Analyst
The following members, a quorum, were present:
Mr. Bernard Ingold / ChairpersonMr. Frank Jones / Member
Ms. LaVerne Douglas / Member
The Board considered the following evidence:
Exhibit A - Application for correction of military records.
Exhibit B - Military Personnel Records (including advisory opinion, if any).
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ABCMR Record of Proceedings (cont) AR20050006512
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests that the separation code on her DD Form 214 be changed to a more favorable code that will allow her to receive separation pay.
2. The applicant states, in effect, that her separation code should be changed so as to allow her to receive the separation pay to which she was entitled.
3. The applicant provides no additional supporting documents with her application.
CONSIDERATION OF EVIDENCE:
1. She enlisted in the Regular Army on 14 February 1997 for a period of 5 years and training as an air traffic control operator. At the time of her enlistment, she indicated that she was married and she listed no children.
2. She completed her basic combat training at Fort Jackson, South Carolina, and her advanced individual training (AIT) at Fort Rucker, Alabama. Upon completion of her AIT she was transferred to Fort Drum, New York.
3. On 23 March 1999, while serving in the pay grade of E-3, she extended her enlistment for a period of 4 months to meet the service remaining requirements for a with dependents tour in Germany. She departed for assignment to Germany on 14 April 1999.
4. On 17 May 2002, while serving in the pay grade of E-4, the applicant was transferred to Fort Jackson, South Carolina, to undergo mandatory training and reclassification as an administrative specialist. She completed her training and was transferred to Fort Stewart, Georgia.
5. On 10 October 2002, she reenlisted for a period of 3 years and assignment to Fort Huachuca, Arizona. At the time of her reenlistment, she indicated that she had a son (2 years of age) and two daughters (4 and 8 years of age).
6. On 19 February 2003, she was deployed to Southwest Asia in support of Operation Enduring/Iraqi Freedom and remained there until 2 August 2003, when she was deployed back to Fort Stewart.
7. The facts and circumstances contained in the available records, though somewhat incomplete, show that on 26 September 2003, the applicant’s commander notified her that he was initiating action to separate her from the service under the provisions of Army Regulation 635-200, chapter 14, due to misconduct. He cited as the basis for his recommendation that the applicant had made disrespectful remarks towards a superior commissioned officer and Noncommissioned Officer, that she had missed movement, that she had disobeyed a direct order to submit a viable family care plan, and that she was neglectful in the care of her children. He advised her of her rights in the matter and informed her that she had the right to a hearing before an administrative separation board because she had 6 or more years service. He also advised her that failure to acknowledge the notification and return it within 7 days would constitute a waiver of her rights in the matter. There is not a copy of the acknowledgement in the available records. However, it appears that the commander used the wrong letter format to effect notification. Instead of advising her that the lowest discharge she could receive was a general discharge, he used the format used for discharges under other than honorable conditions. However, he did indicate that he was recommending that she receive a general discharge.
8. On 29 September 2003, charges were preferred against the applicant for one specification of behaving disrespectfully towards a superior commissioned officer, one specification of behaving disrespectfully towards a superior noncommissioned officer and two specifications of communicating a threat.
9. On 8 October 2003, the applicant was convicted by a summary court-martial of all of the charges against her. She was sentenced to a reduction to the pay grade of E-1, a forfeiture of pay (suspended until 6 March 2004) and confinement for 30 days. The applicant appealed her punishment and her appeal was denied on 14 October 2003.
10. On 14 October 2003, the brigade commander approved the recommendation for discharge and directed that she be furnished a General Discharge Certificate.
11. On 14 November 2003, she was discharged under honorable conditions under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct. She had served 6 years, 9 months and 1 days of total active service.
12. On 5 July 2004, she applied to the Army Discharge Review Board (ADRB) for an upgrade of her discharge. She contended that her discharge was improper because she had already been punished for the offenses and a discharge was too harsh a punishment under the circumstances. She also contended that she should have received an administrative hearing and indicated that she had already had a discharge approved for parenthood 6 months prior. She further stated that the officers and noncommissioned officers lied at the court-martial.
13. The ADRB opined that because the applicant had over 6 years, she should have been afforded a hearing before a board of officers and that the proper approval authority was the general court-martial convening authority instead of the special court-martial convening authority that approved the discharge. The ADRB voted unanimously to upgrade her discharge to fully honorable under Secretarial Authority on 17 December 2004. Accordingly, she was issued a new DD Form 214 and an Honorable Discharge Certificate. Her separation code was changed to “JFF” to coincide with the new authority for separation, Army Regulation 635-200, paragraph 5-3, Secretarial Authority.
14. In the processing of this case, a staff member contacted the brigade commander who approved the applicant’s separation proceedings. He remembered the applicant and stated that he became the separation authority once the applicant waived her right to a board. He also stated that he remembers that she just wanted to get out as soon as possible. He also advised the staff member to contact the company commander, who was still at Fort Stewart.
15. A staff member of the board contacted the company commander at Fort Stewart, who also remembered the applicant and her case. He also confirmed that he remembered that the applicant had waived her right to an administrative separation board.
16. Further review of the available separation proceedings shows that at the time the special court-martial convening authority approved the separation proceedings, he also indicated that he was approving a conditional waiver, which indicates that the applicant agreed to waive her right to appear before an administrative separation board in return for a discharge no lower than a general.
17. Department of the Army Circular 635-92-1 outlines the eligibility criteria for separation pay entitlements. Table E-2 provides, in pertinent part, that personnel discharged under the provisions of Army Regulation 635-200, paragraph 5-3, Secretarial Authority, may be authorized one-half separation pay. Eligibility will be determined on a case-by-case basis. That regulation also provides that the Secretary of the Army may make a determination that the conditions under which the Soldier is separated does not warrant separation pay.
18. Army Regulation 635-200, Personnel Separations, provides the authorities that are authorized to order separations prior to the expiration of term of service. Paragraph 1-21 provides, in pertinent part, that commanders who are special court-martial convening authorities are authorized to order the separation or release from active duty under Chapter 14 when a discharge under other than honorable conditions is not warranted and the notification procedure is used. An Honorable discharge may be ordered only when the commander exercising general court-martial jurisdiction has authorized the exercise of separation authority in the case.
19. That regulation also provides that an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel. A general discharge is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record clearly shows that the applicant was properly advised of her rights by her commander at the time he notified her that he was initiating separation actions under the provisions of Army Regulation 635-200, chapter 14. That notification included the fact that she was entitled to appear before an administrative separation board. She was also informed that she had 7 days to in which to acknowledge the notification and to make her elections and that failure to comply would result in a waiver of her rights. The commander also informed the applicant at the time that he was recommending that she receive a General Discharge Certificate.
2. The available records do not contain a copy of the applicant’s acknowledgement/elections and the applicant has not provided any evidence to show that she was denied the opportunity to appear before an administrative separation board. Therefore, absent such evidence, it must be presumed that the applicant waived her right to appear before a board.
3. Although it appears that the wrong notification letter was used to notify her of the separation action that was being initiated, which mandated that the general court-martial convening authority act on the case, the fact that the brigade commander approved the separation instead of the commanding general does not negate the underlying misconduct that led to her separation. In fact, because the brigade commander acted on her case, she was guaranteed to receive no worse than a general discharge. However, had the general court-martial convening authority acted on her case, he could have directed a discharge under other than honorable conditions.
4. Notwithstanding the ADRB’s actions to upgrade her discharge to fully honorable under Secretarial Authority, the applicant has failed to show through the evidence submitted with her application or the evidence of record that her separation code or the authority for her separation is incorrect or that it warrants changing.
5. Additionally, it appears that the applicant has received sufficient compensation in the form of a fully honorable discharge and given her less than stellar record of service, the applicant should not receive additional compensation in the form of separation pay.
6. While separation pay may be authorized for individuals discharged under “Secretarial Authority”, it is not normally authorized for discharges upgraded under that authority. In this case it does not appear that her service warrants the award of separation pay, which would also require her transfer to the Reserve Components.
7. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.
BOARD VOTE:
______GRANT FULL RELIEF
______GRANT PARTIAL RELIEF
______GRANT FORMAL HEARING
___BI ______FJ______LD __ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
__ Bernard Ingold______
CHAIRPERSON
INDEX
CASE ID / AR20050006512SUFFIX
RECON
DATE BOARDED / 20060516
TYPE OF DISCHARGE / HD
DATE OF DISCHARGE / 20031114
DISCHARGE AUTHORITY / AR 635-200, Para 5-3
DISCHARGE REASON / SECRETARIAL AUTHORITY
BOARD DECISION / (DENY)
REVIEW AUTHORITY / AR 15-185
ISSUES 1.110.0200 / 191/SPD CODE
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